Overlawyered: Chronicling The High Cost Of Our Legal System

A career of suing foodmakers

“A fast-food company like McDonald’s may not be responsible for the entire obesity epidemic,” litigious law prof John Banzhaf tells Time, “but let’s say they’re 5% responsible. Five percent of $117 billion is still an enormous amount of money.” Brian Murphy, a recent Rutgers law grad who attended this summer’s Northeastern U. let’s-sue-foodmakers confab, said: “It’s a very important and pressing issue, and its outcome will be with us for years to come. I’m hoping to be able to build a career out of this issue.”

However, even many anti-sweets activists gag at Banzhaf’s notion of suing school districts that enter vending-machine deals. “Brita Butler-Wall, executive director of Seattle-based Citizens’ Campaign for Commercial-Free Schools, has been lobbying the school board for more than a year to get rid of the Coca-Cola contract. Yet, as a parent of an eighth-grader in a local public school, she says, ‘I don’t want to see our district spending its money hiring more lawyers to fight a legal battle.’ Adam Drewnowski, director of the Center for Public Health Nutrition at the University of Washington, says, ‘If you want to influence the school board, you run for a seat on the board. Threatening a lawsuit is almost like blackmail. It’s just unconscionable.'” (Laura Bradford, “Fat Foods: Back in Court”, Time, Aug. 3).

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Update: courts snuff tobacco-deal review

It’s been a great couple of weeks for impunity for the devisers and beneficiaries of the gigantic 1998 tobacco heist. On July 31 a New York appellate panel unanimously slapped down Judge Charles Ramos’s attempt to launch an inquiry under his own authority into the ethical status of the $625 million in fees awarded to lawyers representing the Empire State in the litigation. The panel found that Judge Ramos lacked authority to pursue such review in the absence of controversy between the parties to the litigation and said he had mistaken a variety of points of law along the way. The politically well-connected recipients of that $625 million bonanza had good reason to heave a sigh of relief, since it seems practically no one in the state other than Judge Ramos is curious as to what they did to become entitled to the money (Daniel Wise, “N.Y. Panel Rejects Review Of Tobacco Fee Award”, New York Law Journal, Aug. 1)(see Jul. 30-31, 2002 and links from there). Meanwhile, “[o]nce again, the 3rd U.S. Circuit Court of Appeals has rejected an antitrust challenge to the $200 billion settlement between the top four tobacco companies and 46 states, finding that while the mega-deal did result in stifled competition, the state officials who agreed to it are immune from suit.” Previously, a suit by cigarette wholesalers had been dismissed on the ground of antitrust law’s Noerr-Pennington doctrine, which immunizes anticompetitive conduct related to lobbying and government action itself; the newly dismissed suit was filed on behalf of consumers (Shannon P. Duffy, “Smokers’ Antitrust Challenge Rejected”, The Legal Intelligencer, Jul. 31).

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Victory in Michigan

A unanimous three-judge panel of the Michigan Court of Appeals has thrown out the city of Detroit’s lawsuit against gun manufacturers and dealers, along with the companion suit by surrounding Wayne County (see Aug. 30, 1999; . Reversing a lower court, the appeals panel found that state legislation enacted to bar such suits in 2000 was constitutional. (Dawson Bell, “Appeals court throws out Detroit, Wayne County lawsuits”, Detroit Free Press, Aug. 8; opinion in PDF format)

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“S. Africa asks U.S. to dismiss suits”

Reparations watch: “The South African government has asked a U.S. court to dismiss a series of controversial multibillion dollar apartheid lawsuits against major multinational corporations, saying they could destabilize the economy. In a motion filed with the U.S. District Court in New York yesterday, Justice Minister Penuell Maduna argued the lawsuits undermine South Africa’s sovereignty and its efforts to redress nearly 50 years of white minority rule under apartheid.” (Wambui Chege, Reuters/Boston Globe, Jul. 30, no longer online; “Government Asks US to Dismiss Apartheid Cases”, SAPA/AllAfrica.com, Jul. 29). For more on the background of plaintiff’s attorney Ed Fagan, impresario of this group of suits, see Jun. 24-25, 2002, Jan. 17-19, 2003, and Nov. 17-19, 2000. Update Jan. 2, 2005: judge dismisses claims.

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Employment Policy Foundation finds med-mal system lacking

“The Employment Policy Foundation?s (EPF) analysis of data comparing states with and without limitations on damage awards in malpractice cases found that capped damage awards could save $54.8 billion to $97.5 billion annually — 7.2 percent to 12.7 percent of the $764.8 billion spent on hospital and physician services each year. … In 2001, the gap between premiums collected and underwriting losses amounted to $4,033 per physician, assuming that all 744,000 full-time physicians in the U.S. were covered. … Plaintiffs eventually receive only 38 percent of the total dollars that flow through the malpractice litigation system.” (“Medical Malpractice Litigation Raises Health Care Cost, Reduces Access and Lowers Quality of Care”, EPF Issue Backgrounder, Jun. 19 (PDF); news release, Jun. 13).

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Couldn’t get $11 M for drinking himself into coma

From Lowell, Mass. comes word that a jury has rejected a suit asking that Joseph Albert be awarded millions of dollars for drinking himself into a coma. Attorney Peter J. Nicosia of Tyngsboro asked $11 million in a “dramshop liability” suit against Gus & Paul’s Tavern for serving an undetermined number of beers over two hours to Albert, who was found by police later that night with a blood-alcohol level at a startling .48. Complicating Nicosia’s case was a deposition from a boon companion of Albert’s saying that the plaintiff had been drinking from a bottle of Jack Daniel’s whiskey after leaving the tavern. “I played that off to be basically an untrue story and basically a red herring,” said attorney Nicosia of the Jack Daniels. “The bottle was never found; no one ever saw him drink it.” The jury evidently wasn’t persuaded. (Jeanne Greeley, “Tragic Dram-Shop Case Just Had Too Many Holes”, Massachusetts Lawyers Weekly, Jun. 30). In another of last year’s big defense wins in the Bay State, a jury decided it wasn’t General Motors’ fault that a mother had left her Chevy Astro van running with the keys in the ignition and occupied by her infant with her 4-year-old sister; the pre-schooler climbed into the front and shifted the transmission, causing the van to roll into a pond. (Kelly Winget, “Tot rolls van into pond”, Lawrence Eagle-Tribune, Jul. 18, 2000).

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Risks of honest job references

“Fired workers are on a winning streak with lawsuits against their former employers — but not for being terminated. For being defamed. Juries are awarding millions of dollars in damages to terminated workers who claim their former bosses libeled them through a bad reference.” Scott Witlin, a partner with Proskauer Rose LLP, among the most prominent law firms on the management side, is blunt. “We advise our clients that the safest course is to confirm someone worked there and the dates of employment,” says Witlin. “That’s it.” (Maggie Mulvihill, “At the Bar: Suits target ex-employers for defaming”, Boston Herald, Jul. 29).

The phenomenon of reference-chill is by no means a new one, of course, dating back to the Eighties, but defenders of the litigation system have made occasional efforts to deny it: a 1997 article in U.S. News, for example, breezily dismissed as “myth” the view that “Providing references for a former employee is asking for legal trouble”. (Amy Saltzman, “Suppose They Sue”, U.S. News, Sept. 22, 1997, reprinted at Manhattan Institute site).

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School not obliged to offer summer program

A federal judge has ruled that a private boys’ school is not obliged to offer a summer instruction program as a way of accommodating a disabled student who would otherwise fall behind his class. The Haverford School in suburban Philadelphia had already extensively accommodated previous requests by the junior, who has been diagnosed with chronic fatigue syndrome and sleeping disorders. Could this be what the American Constitution Society is talking about when it refers in alarmist tones to the “vanishing” Americans with Disabilities Act? (Shannon P. Duffy, “School Not Obliged to Offer Summer Program Under ADA”, The Legal Intelligencer, Aug. 7).

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